McClaugherty v. Tri-City Traction Co.

• Decision Date: 04 March 1941
• Docket Number: (No. 9125)
• Citation: 123 W.Va. 112
• Court: West Virginia Supreme Court
• Parties: Don McClaugherty, Admr., etc. v. Tri-City TractionCompany

123 W.Va. 112

Don McClaugherty, Admr., etc.

v. Tri-City TractionCompany

(No. 9125)

Supreme Court of Appeals of West Virginia.

Submitted February 4, 1941.

Decided March 4, 1941.

1. Appeal and Error

The action of a trial court in setting aside a verdict for the plaintiff and granting the defendant a new trial will not be disturbed, unless clearly wrong.

2. Railroads

A trolley car on an interurban electric railway line has the right of way over an automobile at a grade crossing of the railway line and an open country highway.

3. Railroads

In the absence of a controlling statute, rapid movement of an interurban electric car while crossing an open country highway will not be treated as negligence per se.

4. Railroads

In an action against an interurban electric railway company for negligently causing the death of a passenger in an automobile by reason of a collision between the automobile and the car of such company at an open country highway grade crossing, the absence of proper signs at such crossing becomes immaterial, when it appears that the driver of the automobile, could clearly see a trolley car entering, and upon, the crossing for a distance and a time clearly sufficient to have enabled him to bring his vehicle under control before reaching the crossing.

Error to Circuit Court, Mercer County.

Action by Don McClaugherty, administrator of the estate of Samuel W. Berry, deceased, against the Tri-City Traction Company to recover for the death of Samuel W. Berry, deceased. A verdict in favor of the plaintiff was returned. To review an order setting aside the verdict and awarding a new trial, the plaintiff brings error.

Affirmed.

Crockett & Gillespie and Walter G. Burton, for plaintiff in error.

H. E. DeJarnette, for defendant in error. Rose, Judge:

Don McClaugherty, as administrator of the estate of Samuel W. Berry, deceased, prosecutes this writ of error to an order of the Circuit Court of Mercer County by which a verdict in his favor against the Tri-City Traction Company was set aside by the trial court, and a new trial awarded.

The defendant, Tri-City Traction Company, operates an interurban electric railway between the cities of Princeton and Bluefield in Mercer County. These cities are also connected by a highway known as U. S. Route 19 and U. S. Route 21, which crosses the railway tracks diagonally from east to west, about three miles south of Princeton. The highway is paved with a concrete slab twenty feet wide. North and south of the crossing, the highway is practically straight and level for a distance of approximately two hundred yards in either direction. The country about the crossing is opened and unobstructed, except that about one hundred feet north-east of the crossing there was a signboard twenty-one and one-half feet in length and of such height as to conceal an approaching trolley car to a part of the height thereof. A motorist driving north on the highway could see the crossing for a distance of five hundred and seventy feet, and could see the railway tracks to the right for a distance of about two hundred yards, except for that portion of the tracks obstructed by the signboard; and a motorman on the trolley car, approaching from the right, could see the crossing for about two hundred yards and could, from the same point, see an automobile approaching from the south for a distance of five hundred and seventy feet from the crossing.

The accident resulting in decedent's death happened a few minutes after two o'clock p. m. on the second day of January, 1939. The day was clear and the road was dry. The plaintiff's intestate, Samuel W. Berry, was nineteen years of age, resided near Lexington, Virginia, and, with his uncle, Charles Berry, had been visiting a relative in Tazewell, Virginia, whence he was making the return trip, when the accident occurred. He was riding in a two-door Plymouth car owned and driven by this uncle, Charles Berry. They were driving northward toward Princeton at the time the trolley car was approaching southward from Princeton. The actual impact occurred on the west side of the highway, being the left-hand side for the automobile. The left front corner of the trolley car struck the automobile in the right-hand door and dragged it some distance. Samuel W. Berry was killed instantly, and the driver of the car died about nine o'clock the same evening. The trolley car stopped about a car length beyond the west side of the pavement of the highway.

The speed of the automobile is estimated by various witnesses at from forty-five to sixty miles per hour, most of the witnesses fixing the speed at from fifty to fifty-five miles. The motorman says that his car was making the customary speed of thirty-five miles an hour until he reduced the speed to twenty miles on nearing the crossing, but that he turned on full power when he started across, thus accelerating his speed to about the original thirty-five miles; while all of plaintiff's witnesses estimated the car's speed at thirty-five miles an hour and state that there was no reduction of speed at any time. The motorman testifies that he blew his whistle at the regular whistling point, which was distant about one hundred and sixty yards from the crossing, and blew it again as he started across, continuing the blast until the impact. Three of plaintiff's seven witnesses confirm the motorman on this point. Two say they do not recall hearing the whistle, and two are not interrogated on this point.

The defendant railway company maintained no signs at the crossing, the only signs being a small disc at the side of the highway and south of the crossing five hundred and forty-five feet, and a highway intersection sign about eighteen inches square two hundred and eighty-nine feet south of the crossing, both placed there and maintained by the State Highway Department.

The motorman testified that he looked for approaching vehicles, and that he did see the automobile immediately after it came around the curve in the highway five hundred and seventy feet from the crossing. No witness disputes this testimony. There is little conflict in the remaining evidence. Any disagreement as relates to the blowing of the whistle must be resolved as establishing the fact that the whistle was blown. The dispute as to whether the trolley car reduced its speed on approaching the crossing must be resolved in favor of the contention that there was no decrease. This, however, is probably immaterial, since the motorman concedes that the speed of the car was restored before the impact. On the question as to what, if anything, the motorist and motorman did in final effort to actually avoid the collision, all witnesses say that the motorist made no effort to decrease his speed until near the crossing, at which time he swerved to the left and skidded his wheels, and that the skid marks show that the swerving and application of the brakes began at a distance of about thirty-one feet from the point of collision; the motorman says he turned off his power and applied his emergency brakes the instant it became apparent the automobile would not be brought under control. No witness says the car could have been stopped in time to avoid the automobile.

From the undisputed evidence of all the witnesses, it must be taken as conclusively established in this case that the driver of the automobile in which the decedent was riding at the time he was killed was grossly negligent, and that this driver's negligence proximately contributed to the decedent's death. There is, however, no evidence showing, or tending to show, that the deceased was guilty, either by omission or...